DIRECTOR AGREEMENT
This DIRECTOR AGREEMENT is made as of
the 18th day of January, 2011 (the “Agreement”) by and between GoEnergy, Inc., a
Delaware corporation (the “Company”), and Vadim Mats (the
“Director”).
WHEREAS, the Company appointed the
Director as a member of the Board of Directors of the Company (the “Board”) on
January 14, 2011 and desires to enter into an agreement with the Director with
respect to such appointment; and
WHEREAS, the Director is willing to
accept such appointment and to serve the Company on the terms set forth herein,
and in accordance with, the provisions of this Agreement.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein, the parties hereto agree as
follows:
1. Position. Subject
to the terms and provisions of this Agreement, the Company shall cause the
Director to be appointed as a member of the Board and the Director hereby agrees
to serve the Company in that position upon the terms and conditions hereinafter
set forth, provided, however, that the
Director’s continued service on the Board after the initial one-year term on the
Board shall be subject to any necessary approval by the Company’s
stockholders.
2. Duties. During
the Directorship Term (as defined herein), the Director shall serve as a member
of the Board, and the Director shall make reasonable business efforts to attend
all Board meetings, serve on appropriate subcommittees as reasonably requested
by the Board, make himself available to the Company at mutually convenient times
and places, attend external meetings and presentations, as appropriate and
convenient, and perform such duties, services and responsibilities and have the
authority commensurate to such position.
The Director will use his best efforts
to promote the interests of the Company. The Company recognizes that the
Director (i) is or may become a full-time executive employee of another entity
and that his responsibilities to such entity must have priority and (ii) sits or
may sit on the board of directors of other entities. Notwithstanding
the same, the Director will use reasonable business efforts to coordinate his
respective commitments so as to fulfill his obligations to the Company and, in
any event, will fulfill his legal obligations as a director. Other than as set
forth above, the Director will not, without the prior notification to the Board,
engage in any other business activity which could materially interfere with the
performance of his duties, services and responsibilities hereunder or which is
in violation of the reasonable policies established from time to time by the
Company, provided that the
foregoing shall in no way limit his activities on behalf of (i) any current
employer and its affiliates or (ii) the board of directors of any entities on
which he currently sits. At such time as the Board receives such
notification, the Board may require the resignation of the Director if it
determines that such business activity does in fact materially interfere with
the performance of the Director’s duties, services and responsibilities
hereunder.
3. Compensation.
(a) Stock
Issuance. The Director shall receive at the end of every fiscal quarter during the
Directorship Term ten thousand (10,000) shares of restricted common stock, par
value $.0001 per share (the “Common Stock”), of the Company. For any
period during the Directorship Term that the Director does not serve a full
quarter, the amount of shares of Common Stock issued shall be pro-rated based on
the number of days during such quarter that the Director was a member of the
Board.
(i) The
Director’s status during the Directorship Term shall be that of an independent
contractor and not, for any purpose, that of an employee or agent with authority
to bind the Company in any respect. All payments and other consideration made or
provided to the Director under Section 3 hereof shall be made or provided
without withholding or deduction of any kind, and the Director shall assume sole
responsibility for discharging all tax or other obligations associated
therewith.
(b) Expense
Reimbursements. During the Directorship Term, the Company shall
reimburse the Director for all reasonable out-of-pocket expenses incurred by the
Director in attending any in-person meetings, provided that the
Director complies with the generally applicable policies, practices and
procedures of the Company for submission of expense reports, receipts or similar
documentation of such expenses. Any reimbursements for allocated expenses (as
compared to out-of-pocket expenses of the Director) must be approved in advance
by the Company.
4. Directorship
Term. The “Directorship Term,” as used in this Agreement,
shall mean the period commencing on the date hereof and terminating on the
earlier of the date of the next annual stockholders meeting and the earliest of
the following to occur:
(a) the
death of the Director;
(b) the
termination of the Director from his membership on the Board by the mutual
agreement of the Company and the Director;
(c) the
removal of the Director from the Board by the majority stockholders of the
Company; and
(d) the
resignation by the Director from the Board.
5. Director’s Representation
and Acknowledgment. The Director represents to the Company
that his execution and performance of this Agreement shall not be in violation
of any agreement or obligation (whether or not written) that he may have with or
to any person or entity, including without limitation, any prior or current
employer. The Director hereby acknowledges and agrees that this Agreement (and
any other agreement or obligation referred to herein) shall be an obligation
solely of the Company, and the Director shall have no recourse whatsoever
against any stockholder of the Company or any of their respective affiliates
with regard to this Agreement.
6. Director
Covenants.
(a) Unauthorized
Disclosure. The Director agrees and understands that in the
Director’s position with the Company, the Director has been and will be exposed
to and receive information relating to the confidential affairs of the Company,
including, but not limited to, technical information, business and marketing
plans, strategies, customer information, other information concerning the
Company’s products, promotions, development, financing, expansion plans,
business policies and practices, and other forms of information considered by
the Company to be confidential and in the nature of trade secrets. The Director
agrees that during the Directorship Term and thereafter, the Director will keep
such information confidential and will not disclose such information, either
directly or indirectly, to any third person or entity without the prior written
consent of the Company; provided, however, that (i) the
Director shall have no such obligation to the extent such information is or
becomes publicly known or generally known in the Company’s industry other than
as a result of the Director’s breach of his obligations hereunder and (ii) the
Director may, after giving prior notice to the Company to the extent practicable
under the circumstances, disclose such information to the extent required by
applicable laws or governmental regulations or judicial or regulatory process.
This confidentiality covenant has no temporal, geographical or territorial
restriction. Upon termination of the Directorship Term, the Director will
promptly return to the Company and/or destroy at the Company’s direction all
property, keys, notes, memoranda, writings, lists, files, reports, customer
lists, correspondence, tapes, disks, cards, surveys, maps, logs, machines,
technical data, other product or document, and any summary or compilation of the
foregoing, in whatever form, including, without limitation, in electronic form,
which has been produced by, received by or otherwise submitted to the Director
in the course or otherwise as a result of the Director’s position with the
Company during or prior to the Directorship Term, provided that, the
Company shall retain such materials and make them available to the Director if
requested by him in connection with any litigation against the Director under
circumstances in which (i) the Director demonstrates to the reasonable
satisfaction of the Company that the materials are necessary to his defense in
the litigation and (ii) the confidentiality of the materials is preserved to the
reasonable satisfaction of the Company.
(b) Non-Solicitation. During
the Directorship Term and for a period of three (3) years thereafter, the
Director shall not interfere with the Company’s relationship with, or endeavor
to entice away from the Company, any person who, on the date of the termination
of the Directorship Term and/or at any time during the one year period prior to
the termination of the Directorship Term, was an employee or customer of the
Company or otherwise had a material business relationship with the
Company.
(c) Remedies. The
Director agrees that any breach of the terms of this Section 6 would result in
irreparable injury and damage to the Company for which the Company would have no
adequate remedy at law; the Director therefore also agrees that in the event of
said breach or any threat of breach, the Company shall be entitled to an
immediate injunction and restraining order to prevent such breach and/or
threatened breach and/or continued breach by the Director and/or any and all
entities acting for and/or with the Director, without having to prove damages or
paying a bond, in addition to any other remedies to which the Company may be
entitled at law or in equity. The terms of this paragraph shall not prevent the
Company from pursuing any other available remedies for any breach or threatened
breach hereof, including, but not limited to, the recovery of damages from the
Director. The Director acknowledges that the Company would not have entered into
this Agreement had the Director not agreed to the provisions of this Section
6.
(i) The
provisions of this Section 6 shall survive any termination of the Directorship
Term, and the existence of any claim or cause of action by the Director against
the Company, whether predicated on this Agreement or otherwise, shall not
constitute a defense to the enforcement by the Company of the covenants and
agreements of this Section 6.
7. Indemnification. The
Company agrees to indemnify the Director for his activities as a director of the
Company to the fullest extent permitted by law, and to cover the Director under
any director and officer liability insurance obtained by the
Company.
8. Non-Waiver of
Rights. The failure to enforce at any time the provisions of
this Agreement or to require at any time performance by the other party of any
of the provisions hereof shall in no way be construed to be a waiver of such
provisions or to affect either the validity of this Agreement or any part
hereof, or the right of either party to enforce each and every provision in
accordance with its terms. No waiver by either party hereto of any breach by the
other party hereto of any provision of this Agreement to be performed by such
other party shall be deemed a waiver of similar or dissimilar provisions at that
time or at any prior or subsequent time.
9. Notices. Every
notice relating to this Agreement shall be in writing and shall be given by
personal delivery or by registered or certified mail, postage prepaid, return
receipt requested; to:
If to the
Company:
GoEnergy,
Inc.
0000
Xxxxxx xx xxx Xxxxxxxx, Xxxxx 000
Xxx Xxxx,
XX 00000
Telephone:
(000) 000-0000
If to the
Director:
Vadim
Mats
000
Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx
Xxxxxx, XX 00000
Telephone:
(000) 000-0000
Either of the parties hereto may change
their address for purposes of notice hereunder by giving notice in writing to
such other party pursuant to this Section 9.
10. Binding
Effect/Assignment. This Agreement shall inure to the benefit
of and be binding upon the parties hereto and their respective heirs, executors,
personal representatives, estates, successors (including, without limitation, by
way of merger) and assigns. Notwithstanding the provisions of the immediately
preceding sentence, neither the Director nor the Company shall assign all or any
portion of this Agreement without the prior written consent of the other
party.
11. Entire
Agreement. This Agreement (together with the other agreements
referred to herein) sets forth the entire understanding of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements,
written or oral, between them as to such subject matter.
12. Severability. If
any provision of this Agreement, or any application thereof to any
circumstances, is invalid, in whole or in part, such provision or application
shall to that extent be severable and shall not affect other provisions or
applications of this Agreement.
13. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without reference to the
principles of conflict of laws. All actions and proceedings arising out of or
relating to this Agreement shall be heard and determined in any court in the
State of New York and the parties hereto hereby consent to the jurisdiction of
such courts in any such action or proceeding; provided, however, that neither
party shall commence any such action or proceeding unless prior thereto the
parties have in good faith attempted to resolve the claim, dispute or cause of
action which is the subject of such action or proceeding through mediation by an
independent third party.
14. Legal
Fees. The parties hereto agree that the non-prevailing party
in any dispute, claim, action or proceeding between the parties hereto arising
out of or relating to the terms and conditions of this Agreement or any
provision thereof (a “Dispute”), shall reimburse the prevailing party for
reasonable attorney’s fees and expenses incurred by the prevailing party in
connection with such Dispute; provided, however, that the
Director shall only be required to reimburse the Company for its fees and
expenses incurred in connection with a Dispute if the Director’s position in
such Dispute was found by the court, arbitrator or other person or entity
presiding over such Dispute to be frivolous or advanced not in good
faith.
15. Modifications. Neither
this Agreement nor any provision hereof may be modified, altered, amended or
waived except by an instrument in writing duly signed by the party to be
charged.
16. Tense and
Headings. Whenever any words used herein are in the singular
form, they shall be construed as though they were also used in the plural form
in all cases where they would so apply. The headings contained herein are solely
for the purposes of reference, are not part of this Agreement and shall not in
any way affect the meaning or interpretation of this Agreement.
17. Counterparts. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed to be an original but all of which together shall constitute one and the
same instrument.
[-Signature
Page Follows-]
IN
WITNESS WHEREOF, the Company has caused this Director Agreement to be executed
by authority of its Board of Directors, and the Director has hereunto set his
hand, on the day and year first above written.
GoENERGY,
INC.
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By:
|
/s/
Xxxxx
Xxxxxx
|
|
|
Xxxxx
Xxxxxx
|
|
|
President
and CEO
|
DIRECTOR
/s/
Vadim
Mats
Vadim
Mats
